* Pursua nt to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 9, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-30775

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NELSON WILLIAMS, also known as Lil’ Bo,

Defendant - Appellant.

______________________ ____________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:04-CR-22-1-J

_________________________________________________________________

Before JOLLY, DENNIS, and OWEN, Circuit Judges.

PER CURIAM: *

Nelson Williams (also known as “Lil’ Bo”) was indicted on six

counts, all relating to the possession and distributi on of crack

cocaine. Specifically, Williams was charged with (1) conspiracy to

distribute more than five but less than fifty grams of crack

cocaine; (2) two counts of possession with intent to distribute

crack cocaine; (3) distribution of crack cocaine; (4) possession of

a firearm in furtherance of a drug trafficking crime; and (5)

possession of a firearm by a felon.2

At trial, Williams moved for acquittal under F E D

. R. C RIM

. P

.

29(a). The district court denied the motion and the jury

subsequently convic ted Williams on all six counts. Williams now

appeals the denial of his motion for acquittal, contending that the

government failed to present sufficient evidence to sustain a

conviction on any of the six charges against him.

I

We review the denial of a motion for acquittal de novo

,

applying the same standard as the district court in reviewing the

sufficiency of the evidence. S ee United States v. Anderson

, 174

F.3d 515, 522 (5th Cir. 1999). I n determining whether there was

sufficient ev idence to sustain a defendant’s conviction, we view

the evidence and the inferences therefrom in the light most

favorable to the verdict, and ask whether a rational juror could

have found the defendant guilty beyond a reasonable doubt. Id.

It is evident that a majority of Williams’s six points of

error lack merit. Moreover, it is clear that this case has value

only to the parties, who well understand the facts and issues. We

therefore confine our substantive discussion to whether there was

sufficient ev idence to sustain Williams’s conviction for (A)

conspiracy to violate narcotics laws, and (B) possession of a

firearm in furtherance of a drug trafficking crime.

A

In order to support a conspiracy conviction under 21 U.S.C. §

846, the government must show “(1) the existence of an agreement3

between two or more persons to violate the narcotics laws, (2) that

each alleged conspirator knew of the conspiracy and intended to

join it, and (3) that each alleged conspirator did participate in

the conspiracy”. United States v. Puig-Infante , 19 F.3d 929, 936

( 5th Cir. 1994). In this case, the government must show an

agreement to “distribute and possess with intent to distribute more

than five but less than fifty grams of crack cocaine”, in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(3).

As an initial matter, it is abundantly clear that Williams and

Tyrone Smith combined to distribute less than one gram of crack

cocaine to an undercover officer on April 9, 2003. This fact

alone, howeve r, cannot support a finding that Williams and Smith

engaged in a conspiracy to distribute additional qu antities of

cocaine. Nothing in the record suggests any ongoing agreement

between the two. At trial, the government conceded that it could

not link Smith to the cocaine seized from Williams’s residence on

November 12, 2003. Moreover, there is no evidence to suggest the

existence of any unidentified third party with whom Williams might

have conspired to distribute cocaine.

Given the utter lack of evidence on this point, no rational

juror could have found beyond a reasonable doubt that Williams

conspired to distribute more than five grams of crack cocaine. We

therefore hold, as we must, that the district court erred in

denying Williams’s motion for acquittal on the conspiracy charge.

B4

Turning to Williams’s one remaining argument of note, we hold

that the government prese nted sufficient evidence to sustain

Williams’s conviction for possession of a firearm in furtherance of

a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)

and (c)(1)(B)(i). In U nited States v. Ceballos-Torres , 218 F.3d

409 (5th Cir. 2000), we set forth a multi-factor test for

determining whether possession of a firearm is “in furtherance” of

a drug crime. The relevant factors include, i nter alia

, the

“accessibility of the f irearm, ... whether the gun is loaded,

proximity to drugs or illegal profits, and the time and

circumstances under which the gun is found”. Id. at 414-15.

In the instant case, police found a loaded sawed-off shotgun

and a nine millimeter pistol literally on top of thirty-three grams

of cocaine and a digital scale in Williams’s attic, as well as a

loaded AK-47-style assa ult rifle hidden under the dresser in

Williams’s bedroom. Williams contends that, because the attic is

relatively difficult to access –- the police were forced to climb

o n a chair to reach it –- so too were the shotgun and pistol,

making it unlikely that they would be used “in furt herance” of a

drug crime.

We need not linger long on this argument. Whatever difficulty

Williams faced in accessing the shotgun and pistol, they were,

without question, readily available to him when he needed them most

–- i.e., when he was retrieving cocaine prior to making a sale. We

therefore hold that the evidence adduced at trial was sufficient to5

show that Williams’s firearms afforded him added security while he

engaged in the sale of narcotics. Accordingly, the district court

did not err in denying Williams’s motion for acquittal on this

count.

II

For the f oregoing reasons, we REVERSE the district court’s

denial of Williams’s motion for acquittal on the charge of

conspiracy to distribute and possess with intent to distribute more

than five but l ess than fifty grams of crack cocaine, and VACATE

Williams’s conviction and sentence on that count. The judgment of

the district court is, in all other respects, AFFIRMED.

AFFIRMED in part; REVERSED and VACATED in part.